Opinion
No. LLI-CV-5001211 S
July 6, 2007
MEMORANDUM OF DECISION
The defendant's motion to strike (#105) the plaintiff's complaint. For the reasons that follow, the motion must be denied.
On October 10, 2006, the plaintiff, Peter Benedict, filed a one-count complaint against the defendant, town of Norfolk. The plaintiff makes the following allegations. On October 1, 1973, at an annual town meeting, the town of Norfolk voted affirmatively to assume the obligations of plowing snow from and sanding the driveway and parking area of the Meadowbrook Housing Complex in Norfolk. On or about January 9, 2005, the defendant continued to have an obligation to plow, salt and sand that driveway and parking lot. On January 9, 2005, the plaintiff, a resident of the housing complex, slipped and fell on an accumulation of ice in the parking lot and sustained injuries. These injuries were directly and proximately caused by the negligence of the defendant.
On January 22, 2007, the defendant filed a motion to strike the plaintiff's complaint on the ground that: "It is apparent from the face of the Complaint that the Town of Norfolk was engaging in a governmental function while performing the acts and omissions complained of by the Plaintiff, and is therefore entitled to governmental immunity." The defendant submitted a memorandum of law in support of this motion. On February 28, 2007, the plaintiff filed a memorandum of law in opposition to the motion to strike. On March 19, 2007, the defendant filed a reply to the plaintiff's opposition. The matter was then heard on the short calendar on April 30, 2007.
DISCUSSION
"[A] party may challenge the legal sufficiency of an adverse party's claim by filing a motion to strike." Vertex, Inc. v. Waterbury, 278 Conn. 557, 564, 898 A.2d 178 (2006). "A motion to strike challenges the legal sufficiency of a pleading . . . and, consequently, requires no factual findings by the trial court." (Internal quotation marks omitted.) Greco v. United Technologies Corp., 277 Conn. 337, 347, 890 A.2d 1289 (2006). "Practice Book . . . § 10-39, allows for a claim for relief to be stricken only if the relief sought could not be legally awarded." Pamela B. v. Ment, 244 Conn. 296, 325, 709 A.2d 1089 (1998).
"It is fundamental that in determining the sufficiency of a [pleading] challenged by a [party's] motion to strike, all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted." (Internal quotation marks omitted.) Commissioner of Labor v. C.J.M Services, Inc., 268 Conn. 283, 292, 842 A.2d 1124 (2004). "[The court takes] the facts to be those alleged in the complaint that has been stricken and [construes] the complaint in the manner most favorable to sustaining its legal sufficiency." (Internal quotation marks omitted.) Sullivan v. Lake Compounce Theme Park, Inc., 277 Conn. 113, 117, 889 A.2d 810 (2006). "In ruling on a motion to strike, the court is limited to the facts alleged in the complaint." (Internal quotation marks omitted.) Faulkner v. United Technologies Corp., 240 Conn. 576, 580, 693 A.2d 293 (1997).
"[W]here it is apparent from the face of the complaint that the municipality was engaging in a governmental function while performing the acts and omissions complained of by the plaintiff, the defendant is not required to plead governmental immunity as a special defense and may attack the legal sufficiency of the complaint through a motion to strike." (Internal quotation marks omitted.) Violano v. Fernandez, 280 Conn. 310, 321, 907 A.2d 1188 (2006).
The defendant has moved to strike the plaintiff's complaint on the ground that it is entitled to governmental immunity. In its memorandum of law in support of this motion, the defendant argues that it is apparent from the face of the complaint that: (1) the alleged acts and omissions were governmental functions; and (2) these were discretionary acts.
The plaintiff counters that the defendant is not entitled to governmental immunity because: (1) the alleged acts and omissions were not governmental functions; (2) even if they were governmental functions, the actions and omissions were proprietary; and (3) even if they were not proprietary, then the actions and omission were ministerial. Therefore, the plaintiff argues that he has sufficiently alleged negligence against the defendant in accordance with General Statutes § 52-557n.
Section 52-557n provides in relevant part: "(a)(1) Except as otherwise provided by law, a political subdivision of the state shall be liable for damages to person or property caused by: (A) The negligent acts or omissions of such political subdivision or any employee, officer or agent thereof acting within the scope of his employment or official duties; (B) negligence in the performance of functions from which the political subdivision derives a special corporate profit or pecuniary benefit; and (C) acts of the political subdivision which constitute the creation or participation in the creation of a nuisance; provided, no cause of action shall be maintained for damages resulting from injury to any person or property by means of a defective road or bridge except pursuant to section 13a-149. (2) Except as otherwise provided by law, a political subdivision of the state shall not be liable for damages to person or property cause by: (A) Acts or omissions of any employee, officer or agent which constitute criminal conduct, fraud, actual malice or wilful misconduct; or (B) negligent acts or omissions which require the exercise of judgment or discretion as an official function of the authority expressly or impliedly granted by law."
A. Official Functions
The plaintiff first argues that the defendant is not entitled to governmental immunity because the complaint does not allege that the defendant's duty arose from authority expressly or impliedly granted by law and, therefore, the acts and omissions are not official governmental functions. Rather, the plaintiff argues that the defendant's assumption of the duty to plow and sand was a voluntary and gratuitous act; in essence, that the defendant was a private contractor. The duty to plow and sand, however, arose as a result of a vote at a town meeting in 1973. While the defendant did not, prior to 1973, have a duty to sand or plow this parking lot, once the town affirmatively voted to use taxpayer dollars to sand and plow this parking lot, that action was binding on the town. As such, it is an official function for the purposes of implicating governmental immunity.
B. Proprietary Actions
The plaintiff next argues that even if the acts and omissions of the defendant constituted official governmental functions, these functions were proprietary in nature and, therefore, governmental immunity would still not apply. "[Section] 52-557n(a)(1)(B) [codified] the common-law rule that municipalities are liable for their negligent acts committed in their proprietary capacity." Considine v. Waterbury, 279 Conn. 830, 842, 844, 905 A.2d 70 (2006). When the actions of a municipality are proprietary in nature, the municipality "is not clothed with [the state's] immunities and is liable to be sued for injuries inflicted through its negligence in the performance of such an act." (Internal quotation marks omitted.) Id., 842. "In determining whether a municipality's activity was proprietary in nature, [the court must examine] whether the activity generated a special corporate benefit or pecuniary profit inuring to the municipality." (Emphasis in original; internal quotation marks omitted.) Id.
"[T]he distinction between a municipality's governmental and proprietary functions has been criticized as being illusory, elusive, arbitrary, unworkable and a quagmire." Id., 845. Despite these difficulties, Considine offered guidance as to when a municipality is entitled to governmental immunity. Actions or omissions are not proprietary if they are either: (1) "imposed by the [s]tate for the benefit of the general public," or (2) arose "out of legislation imposed in pursuance of a general policy, manifested by legislation . . . for the particular advantage of the inhabitants of the municipality, and only through this, and indirectly, for the benefit of the people at large." (Internal quotation marks omitted.) Id., 846. The second class of actions or omissions "encompasses functions that appear to be for the sole benefit of a municipality's inhabitants, but nevertheless provide indirect benefits to the general public." Id. See also, e.g., Pope v. New Haven, 91 Conn. 79, 99 A. 51 (1916) (celebrating Independence Day was a governmental function); Hannon v. Waterbury, 106 Conn. 13, 136 A. 786 (1927) (maintenance of a park system and operation of a swimming pool wholly within the municipality were not proprietary actions). Conversely, the actions are proprietary if the municipality acts "for its own special corporate benefit or pecuniary profit where it engages in an activity for the particular benefit of its inhabitants." (Internal quotation marks omitted.) Id., 847. To determine whether the actions and omissions are proprietary, the court must look at the character of the activity involved. Id.
In Considine, the defendant's actions were proprietary because the city was leasing the premises to a private party and making a profit on the endeavor. Id. The court examined the character of the activity and found that "the leasing of a portion of a municipal building for a substantial rent to a private party to operate a business is an act that very much resembles private enterprise, and, accordingly, consistently has been determined to be a proprietary function." Id., 851. This was not the type of activity that is normally a traditional government function, rather, the city was acting like a private enterprise.
Conversely, in the present case, the defendant's alleged actions and omissions do not have the character of a private enterprise. One major difference between the present case and Considine is that, in the present case, there is no lease or contract with a private entity. Even though the parking lot is part of the Meadowbrook Housing Complex, the town voted affirmatively to use taxpayer dollars to sand and plow the parking lot. There is not a separate lease or contract between the town and the Meadowbrook Housing Complex. Thus, the character of this activity is similar to the actions that are normally traditional government functions, not those of private entities. Moreover, even though the lot is exclusively within the town of Norfolk, people other than just those living in the complex may be in the parking lot. There is some benefit, albeit indirect, to the general public to have the parking lot clear of sand and snow. The use of taxpayer dollars to clear sand and snow from a parking lot is not the type of activity that Considine contemplated to be proprietary. As such, the defendant is still entitled to governmental immunity.
This type of tangential connection is an example of how the distinction between governmental and proprietary functions can be illusory, arbitrary, unworkable and a quagmire. As long as Connecticut retains such distinctions, however, the court must attempt to draw these lines.
C. Discretionary Actions
The plaintiff's final argument is that even if the acts and omissions of the defendant are not proprietary, governmental immunity still does not apply because the alleged actions and omissions are ministerial. Alternatively, if the alleged actions and omissions are discretionary, then the imminent harm exception should apply.
"Determining whether it is apparent on the face of the complaint that the acts complained of are discretionary requires an examination of the nature of the alleged acts or omissions." Violano v. Fernandez, supra, 280 Conn. 322. In Violano, the court found that the alleged acts or omissions were discretionary because the plaintiffs did not allege that there was any provision, ordinance, rule, regulation, policy or other directive that the defendant failed to perform, or performed negligently. Id., 322-24. Rather, the complaint only alleged that the defendant exercised poor judgment. Id.
The plaintiff cites Kolaniak v. Board of Education, 28 Conn.App. 277, 610 A.2d 193 (1992), for support that the alleged actions and omissions were ministerial. Kolaniak, however, is not directly on point because, in that case, there were written bulletins instructing the maintenance personnel to clear the walkways on a daily basis. Id. In the present case, however, the plaintiff has not alleged any provision, ordinance, rule, regulation, policy or other directive that the town of Norfolk failed to follow. Rather, just as in Violano, the plaintiff alleged only that the defendant exercised poor judgment in how the sidewalk was sanded and plowed. There is no allegation of any directive as to how or when the defendant should sand and plow. Therefore, just as in Violano, it is apparent from the face of the complaint that the defendant was engaged in the performance of a discretionary function. This, however, does not end the inquiry.
Since the defendant was engaged in a discretionary function, it is entitled to governmental immunity unless one of the three exceptions to discretionary act immunity applies. See Doe v. Petersen, 279 Conn. 607, 903 A.2d 191 (2006). One exception is the "imminent harm" exception. Id. Under the "imminent harm" exception, "[d]iscretionary act immunity is abrogated when the circumstances make it apparent to the public officer that his or her failure to act would be likely to subject an identifiable person to imminent harm . . . By its own terms, this test requires three things: (1) an imminent harm; (2) an identifiable victim; and (3) a public official to whom it is apparent that his or her conduct is likely to subject that victim to that harm." (Citation omitted; internal quotation marks omitted.) Id., 616. To prevail, a plaintiff must meet all three requirements, and "[d]emonstration of less than all of these criteria is insufficient." Id., 620.
The Supreme Court was faced with a similar factual scenario in Burns v. Board of Education, 228 Conn. 640, 638 A.2d 1 (1994). In CT Page 12774 Burns, the court reversed a grant of summary judgment in favor the defendant on the grounds of governmental immunity because it found that the "imminent harm" exception applies to school children who slip and fall on a patch of ice at school. Id. The court reasoned that since the children were required to be there, the superintendent "[bore] the responsibility for failing to act to prevent the risk of imminent harm to school children as an identifiable class of beneficiaries of his statutory duty of care." Id., 649. Therefore, since "the danger [from slipping and falling on the ice] was limited to the duration of the temporary icy condition in this particularly treacherous area of the campus [and] the potential for harm from a fall on ice was significant and foreseeable," the court found that the "imminent harm" exception applies and governmental immunity was no defense. (Internal quotation marks omitted.) Id., 650.
In the present case, just as in Burns, the danger from slipping and falling on ice in the parking lot was limited in duration and the potential for injury was significant and foreseeable. When the defendant voted affirmatively to use taxpayer dollars to sand and plow the parking lot in 1973, the defendant assumed the responsibility to act to prevent the risk of imminent harm to those who use the parking lot in the Meadowbrook Housing Complex. Furthermore, the plaintiff here was within the class of foreseeable victims. In Burns, it was foreseeable that a child could slip and fall on the ice while they are at school. Here, it was foreseeable that someone living in or visiting the complex could slip and fall while traversing the parking lot. Therefore, just as in Burns, governmental indemnity is not a defense because the alleged actions and omissions of the defendant subjected an identifiable person or group of people to imminent harm. As such, the defendant's motion to strike is denied on this ground.
CONCLUSION
For the foregoing reasons, the defendant's motion to strike is denied on the ground that the alleged acts and omissions are discretionary governmental functions that fall within the imminent harm exception to governmental immunity.